Law Enforcement’s Technology and Individual Privacy

As law enforcement adapts new technology for use in criminal investigations, controversy develops over trying to strike a balance between the often conflicting goals of individual privacy and public security. Fourth Amendment jurisprudence has a long and convoluted history demonstrating both the importance of and the difficulty in achieving this particular balance.

One of law enforcement’s latest technological advances to come under fire by privacy advocates is a device known as a “stingray.” Stingrays, also known as “cell site simulators” or “IMSI catchers,” operate as decoy cell towers that can collect information from a cell phone without the user ever knowing it. For several years federal, state, and local law enforcement agencies have employed stingrays to collect the locations and identities of cell phone users, and even to intercept calls and texts. Although officers are often focused on one particular individual, a stingray will gather information from all users who happen to be nearby—even when those people are in their homes.

The ongoing controversy over stingrays was highlighted recently when the Federal Bureau of Investigation informed Senate Judiciary Committee members of its position that search warrants are not necessary prior to using stingrays in public places where, the FBI posits, there is no reasonable expectation of privacy. Understandably concerned about the reach of the FBI’s practices, the Committee wrote a letter to the Departments of Justice and Homeland Security requesting more detailed information regarding the use of stingrays, including “the policies in place to protect the privacy interests of those whose information might be collected using these devices, and the legal process that DOJ and DHS entities seek prior to using them.”

In the wake of the recent upsurge in the ongoing debate about stingrays, the Virginia House of Delegates is considering a bill (pre-filed in December 2014) that would require law enforcement officers to obtain a warrant before using a stingray unless the officer: (1) is responding to the user’s call for emergency services; (2) has the informed, affirmative consent of the owner or user; (3) has the informed, affirmative consent of the legal guardian or next of kin of the owner or user; or (4) the officer reasonably believes that an emergency involving the immediate danger to a person requires the disclosure without delay. Furthermore, if an officer conducts a warrantless stingray search the officer must file within 3 days a statement supporting the search. If the bills passes, and it looks like it is well-supported, it will be a decided victory for individual privacy. As law enforcement technology continues to evolve so too with the debate around the delicate balance between privacy and security.